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From gay marriage to voting law, Kennedy is the key

Whether the issue is abortion, race or gay rights, Justice Anthony Kennedy is the man in the middle on the Supreme Court, more often bridging the gap between the political right and left than any other justice.

Whether the issue is abortion, race or gay rights, Kennedy is the man in the middle on the Supreme Court, more often bridging the gap between the political right and left than any other justice. It's not a role he seeks out; it's just where he winds up.

"If you have five," Kennedy told a Council of the Americas conference here last month, "then you can say what you want."

That's what he did Wednesday in United States v. Windsor, the court's landmark decision striking down a key section of the Defense of Marriage Act (DOMA). Ever since oral arguments in late March, the other justices' votes appeared nearly equally divided on whether the denial of federal benefits to married same-sex couples was constitutional. Kennedy, as usual, remained an enigma.

In the end — as he has in past gay rights cases — the 76-year-old associate justice came down forcefully on the side of marriage equality.

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity," Kennedy wrote.

"Adults may choose to enter upon this relationship in the confines of their homes and their own private lives, and still retain their dignity as free persons," he wrote then.

But if those two cases have made the affable Kennedy a hero to gay rights advocates, he more often sides with the court's four solid conservatives than its four solid liberals.

That was evident a day earlier, when Kennedy joined the other landmark decision of the court's term: Chief Justice John Roberts' opinion striking down a key section of the Voting Rights Act of 1965.

"He is still the must-have vote in close cases on the Supreme Court," says Theodore Olson, a former U.S. solicitor general who represented gay and lesbian couples seeking to end California's gay marriage ban — a case that was sent back to California on technical grounds Wednesday.

The court's annual statistics tell the story. Almost every year, Kennedy creates the majority on closely divided cases more than any other justice. He is almost as likely to side with the court's four liberals as its four conservatives — something he did five times each on cases decided 5-4 in the court's past term.

In this term's 5-4 cases decided on straight ideological lines, he sided with the conservatives nine times, the liberals five. He was in the majority in 70 of the 77 decisions, the fifth year in a row in which he led that category.

It took until the last case of the year before he authored a "respectful dissent" — and that was on an issue of standing in the California gay marriage case, not on the merits.

ABORTION, RACE AND GAYS

It wasn't always Kennedy's court. Associate Justice Lewis Powell, whom Kennedy replaced on the court in 1988, was the swing vote for years. Then came Sandra Day O'Connor, who, like Kennedy, was nominated by the staunchly conservative President Reagan.

It wasn't until O'Connor retired in 2006 that Kennedy became the go-to justice. Yet his central role on the court has been on display for more than a generation:

• In 1992, he joined with fellow moderates O'Connor and David Souter to write the court's plurality decision in Planned Parenthood v. Casey, which upheld the right to abortion even while permitting several new restrictions.

• In 2003, he wrote the 6-3 decision striking down sodomy laws in Texas and, by extension, 13 other states as unconstitutional — a case that served as a precursor to his DOMA decision this week.

• In 2008, he wrote the 5-4 decision allowing prisoners at Guantanamo Bay to challenge their detention in U.S. civilian courts, even though the facility was run by the Pentagon and located in Cuba.

That was evident in this term's case testing the constitutionality of college affirmative action programs, Fisher v. University of Texas. The case was named after Abigail Fisher, who contended that racial preferences cost her admission to the state's flagship campus in Austin. In the three briefs submitted by lawyers on both sides, Kennedy's name was invoked 50 times.

In the end, Kennedy essentially split the baby in his Fisher opinion issued Monday, sending teh case back to Texas courts with instructions to examine the university's use of racial preferences more closely. It wasn't a win or a loss for either side — and as a result, Kennedy commanded seven votes.

'TRYING TO GET HIS VOTE RIGHT'

A polite Californian on a court dominated by blunt New Yorkers, Kennedy remains one of the least-known justices despite his king-making role. His name is recognized by just 41% of Americans, less than any other justice but Stephen Breyer, a Bill Clinton nominee approaching two decades on the court.

However, Kennedy is favored by 25% and opposed by just 16%, giving him the best "net favorability" on the court, according to a survey last month by Public Policy Polling, a Democratic firm. That's likely because his centrism produces the fewest enemies.

"Justice Kennedy takes very seriously his responsibilities as a justice, and he takes very seriously his votes in these cases," says Steven Engel, a Washington lawyer and former deputy assistant attorney general who clerked for Kennedy in 2001-02. "I think he's focused on trying to get his vote right."

In that sense, Kennedy isn't always predictable. Before last year's decision on President Obama's health care law, nearly all the experts cast him as the swing vote. That role turned out to be played by Chief Justice John Roberts, whose vote salvaged the statute. Kennedy co-authored a blistering dissent that argued the entire law should be struck down.

This year, his votes on the affirmative action and voting rights cases were the subject of guessing games. At the close of debate on the challenge to Section 5 of the Voting Rights Act, which requires mostly Southern states to get federal permission for voting process changes, Laughlin McDonald of the American Civil Liberties Union sounded a familiar refrain.

"I thought that there were four strong votes in support of the constitutionality of Section 5 and four expressing serious reservations about it," Laughlin said, "with Kennedy being somewhere in the middle."

While he's viewed as more sympathetic to gay and lesbian rights than racial preferences, the penultimate sentence of Kennedy's opinion striking down DOMA cautioned that it is "confined to ... lawful marriages."

But Justice Antonin Scalia, who accurately warned in 2003 that Kennedy's decision in Lawrence would lead to gay marriage claims, predicted the DOMA ruling could create a groundswell for constitutional recognition of same-sex marriage.

"I promise you this," Scalia seethed. "The only thing that will 'confine' the court's holding is its sense of what it can get away with."

As he did a decade ago, Scalia could be pointing to Anthony Kennedy's next rendezvous with history.